By: Aditi Dhopesh
Introduction
For a long time, Indian law had no real answer for a deeply human problem: what happens when a person is dying, has little to no hope of recovery, and cannot speak for themselves about whether they wish to continue aggressive medical treatment? The answer is an “Advance Directive”.
An “Advance Directive” (also known as a “Living Will” or an “Advance Medical Directive”) is a legal document through which a person records their wishes regarding medical treatment for a situation in which they may no longer be able to make or communicate decisions for themselves. Advance Directives are particularly relevant where a person:
- is terminally ill;
- has no reasonable prospect of recovery; and
- is being kept alive through life-sustaining treatment.
In such circumstances, an Advance Directive allows a person, while competent, to state in advance the medical treatment they would or would not want to receive if they are no longer able to make or communicate those decisions themselves.
In India, the legal recognition of Advance Directives arises from the Supreme Court’s decision in Common Cause (A Regd. Society) v. Union of India (the “2018 Judgment”).1 The Court recognised the right to die with dignity as part of the right to life under Article 21 of the Constitution,2 and upheld the legal validity of Advance Directives, subject to prescribed safeguards and procedures.
In 2023, the Supreme Court revisited the procedural requirements laid down in the 2018 Judgment, in the same proceedings, by way of Common Cause (A Regd. Society) v. Union of India (the “2023 Order”).3 The 2023 Order modified and simplified several of the requirements governing the execution and implementation of Advance Directives, making the process more workable.
Together, the 2018 Judgment and the 2023 Order contain the guidelines laid down by the Supreme Court for the execution and implementation of Advance Directives in India (the “SC Framework”). The SC Framework gives individuals a mechanism to record their wishes in advance, while also requiring safeguards before life-sustaining treatment is withheld or withdrawn.
Nature and Purpose of an Advance Directive
An Advance Directive is executed while a person has the capacity to understand and make decisions about their medical treatment. Through it, a person can specify the circumstances in which they would not want certain life-sustaining medical treatment to be continued, identify the circumstances in which treatment should be withheld or withdrawn, and nominate persons who can act on their behalf if they subsequently lose decision-making capacity.
The purpose of an Advance Directive is not to authorise active steps to cause death. It operates in the context of decisions concerning the withholding or withdrawal of life-sustaining treatment where the prescribed medical and legal conditions are satisfied.
The SC Framework also makes clear that an Advance Directive does not operate automatically merely because it has been executed. Its implementation is subject to verification of the document and assessment of the patient’s medical condition through the prescribed process.
Legal Position in India
The 2018 Judgment was the principal development recognising Advance Directives in India. The Supreme Court held that the right to die with dignity forms part of the fundamental right to life under Article 21 and recognised the right of an individual to execute an Advance Directive.
The Supreme Court also laid down a procedure for the execution and implementation of Advance Directives, including requirements relating to execution, attestation, verification and consideration by medical boards.
The 2023 Order followed concerns raised about the practical difficulties of implementing the 2018 guidelines. The Supreme Court simplified several requirements, including the process for execution of an Advance Directive and the procedure for obtaining approval for withdrawal of treatment.
One significant change was the removal of the requirement for a Judicial Magistrate of First Class to approve the withdrawal of treatment.The decision now rests primarily on the concurrence of the prescribed medical boards, subject to the safeguards established by the Supreme Court.
The SC Framework remains judicially prescribed. The Supreme Court has indicated that the subject ultimately calls for legislative consideration, and that its guidelines operate until appropriate legislation is enacted.
Who Can Execute an Advance Directive?
An Advance Directive must be executed by an individual who is legally and medically capable of understanding the document and its consequences. The person executing it must:
- be an adult;
- be of sound mind;
- understand the nature and consequences of executing the Advance Directive;
- be capable of communicating their decision; and
- execute the document voluntarily, without coercion, inducement or undue influence.
The Advance Directive should therefore be executed at a time when the person is capable of making an informed decision regarding their medical treatment. It should clearly express the individual’s wishes: instructions that are vague, or incapable of being applied to the relevant medical circumstances, may create difficulties at the time of implementation.
What Should an Advance Directive Contain?
- Competent Executor: The person executing the living will must be an adult, having a healthy and sound state of mind and is in a position to communicate and comprehend the purpose and consequences of executing the Advance Directive.
- Voluntary Execution: The Advance Directive must be voluntarily executed without any coercion, inducement and compulsion, and after having full knowledge.
- Written Document: The Advance Directive must be in writing and clearly specify the circumstances in which medical treatment should be withdrawn or withheld.
- Specific Instructions: The instructions and circumstances in the Advance Directive must specific and clear and shall not be ambiguous in nature.
- Revocation: The Advance Directive must expressly mention that it may be revoked by the executor at any point of time.
- Guardian/Close Relative: The names of the guardians or close relatives shall be clearly mentioned in the Advance Directive. Further, in the event of the executor becoming incapable of taking decisions at the relevant time, such guardian/close relative, will be authorized to give consent to refuse/withdraw medical treatment in manner consistent with the Advance Directive.
- Signature and Witness Requirement: The Advance Directive must be signed by the executor in and attested by two witnesses, preferably independent.
- Authentication: The Advance Directive must be attested before a notary or a gazetted officer, who shall record their satisfaction that the Living Will is voluntarily executed by the executor.
- Copies: The copies of the Advance Directive shall be handed over to: (a) close relatives/ guardians named in the Advance Directive; (b) family physician, if any; (c) competent officer of the local government/ municipal corporation/ panchayat; and (d) executor may upload the Advance Directive as part of the digital health record, if any.
How Is an Advance Directive Implemented?
The execution of an Advance Directive does not itself result in the withdrawal of medical treatment. A separate process must be followed when the circumstances contemplated in the document arise.
Step 1: Assessment by the Treating Physician
Where a patient is terminally ill, is dependent on life-sustaining treatment, has no reasonable hope of recovery or cure and has lost decision-making capacity, the treating physician must verify the authenticity of the Advance Directive and assess whether the patient’s medical circumstances fall within its scope. The treating physician must also consider the patient’s medical condition and the consequences of the available treatment options.
If the treating physician considers that the Advance Directive may be implemented, the matter proceeds to the Primary Medical Board.
Step 2: The Primary Medical Board
The hospital must constitute a Primary Medical Board consisting of the treating physician and at least two medical experts with the prescribed experience in the relevant speciality. The Board examines the patient and determines whether the conditions for withholding or withdrawing treatment are satisfied.9
The examination is conducted in the presence of the guardian or close relative, where applicable. Under the SC Framework, the Primary Medical Board is expected to reach its decision preferably within 48 hours. If it concludes that the Advance Directive should be implemented, the matter proceeds to the Secondary Medical Board.
Step 3: The Secondary Medical Board
The Secondary Medical Board provides an independent medical assessment. It consists of a medical practitioner nominated by the District Chief Medical Officer, along with at least two medical experts having the prescribed experience in the relevant speciality. Members of the Secondary Medical Board should not have served on the Primary Medical Board.
The Secondary Medical Board examines the patient and independently considers whether the conditions for implementation of the Advance Directive are satisfied. Where the patient is still capable of communicating, their wishes are to be ascertained. Where the patient lacks decision-making capacity, the consent of the person nominated in the Advance Directive is obtained in accordance with its terms.
If the Secondary Medical Board agrees with the Primary Medical Board, it endorses implementation of the Advance Directive. The hospital can then proceed with withholding or withdrawing the relevant life-sustaining treatment in accordance with the SC Framework.
When May an Advance Directive Not Be Implemented?
It is important to note that an Advance Directive is not an absolute instruction that must be followed irrespective of the circumstances. Difficulties may arise where the document is ambiguous or where there are genuine doubts regarding its authenticity. Similarly, the circumstances confronting the patient may be materially different from those contemplated when the Advance Directive was executed. In such cases, the medical authorities may have to determine whether it actually applies.
Notwithstanding anything contained in the Advance Directive, The patient’s current wishes are also important. If the patient regains decision-making capacity, their current decision takes precedence over the earlier Advance Directive.
These safeguards are intended to ensure that a decision to withhold or withdraw life-sustaining treatment is based on both the patient’s expressed wishes and the medical circumstances existing at the relevant time.
Importance of a well-drafted Advance Directive
An Advance Directive gives an individual the opportunity to communicate their wishes before they lose the ability to make or communicate medical decisions. It can also guide family members and treating doctors when difficult treatment decisions arise. In its absence, families may have to make decisions in circumstances where the patient’s own wishes are uncertain.
However, an Advance Directive is not a substitute for medical assessment. Its implementation involves verification of the document, assessment of the patient’s condition and consideration by the prescribed medical boards.
For this reason, clarity at the time of drafting is important. The document should clearly identify the circumstances in which the individual wishes treatment to be withheld or withdrawn, and should comply with the procedural requirements of the SC Framework.
Conclusion
The recognition of Advance Directives in India gives individuals a legally recognised means of expressing their wishes regarding life-sustaining medical treatment in circumstances where they may subsequently lose decision-making capacity.
The SC Framework seeks to balance two considerations: respect for an individual’s autonomy, and the need for safeguards before life-sustaining treatment is withheld or withdrawn.
An Advance Directive therefore does not provide an automatic direction for termination of medical treatment. Its implementation depends on the circumstances contemplated in the document being established and the prescribed medical process being followed.
As the legal position continues to operate primarily through judicially prescribed guidelines, individuals considering an Advance Directive should ensure that it is prepared and executed in accordance with the requirements applicable at the relevant time.
References
1. Common Cause (A Regd. Society) v. Union of India, (2018) 5 SCC 1 (Constitution Bench).
2. India Const. art. 21 3. Common Cause (A Regd. Society) v. Union of India, 2023 SCC OnLine SC 99 (Misc. Appl. No. 1699 of 2019 in Writ Petition (Civil) No. 215 of 2005, decided Jan. 24, 2023).
